Surrogacy refers to when another woman carries a baby to term for another person or couple. In many cases, the surrogate and the intended parents do not like to use the term ‘mother’ for this service.
There are two main types of surrogacy: traditional and gestational. Traditional surrogates use their own eggs and the sperm of the father or a donor. They usually become pregnant via IVF, IUI, or at-home insemination. The surrogate carries the child, which is biologically theirs, and gives it to the intended parents, and sign away all of their parental rights. Traditional surrogacy is not legal in India.
Gestational surrogacy is much more common these days. In this case, the mother goes through ovarian stimulation to retrieve her own eggs. If this is not possible, the intended parents acquire donor eggs. These eggs are fertilised with the husband’s sperm (or donor sperm) during IVF, and the resulting embryo or embryos are transferred into the surrogate’s womb. She is not biologically related to the child. However, you might still see a gestational surrogate referred to as a ‘birth mother.’
In India, the surrogate must be a close relative of the couple, and she cannot be compensated for anything other than expenses. The law recommends that genetic material comes from at least one of the intended parents, but this is assessed on a case by case basis.
First things first, surrogacy is legal in India. However, it is not always a cut and dry situation. Surrogacy in India is only legal for Indian people – there are severe restrictions against foreigners using surrogates in this country. While some clinics might try to convince you that it’s ok and they have special permissions for foreigners, this is not true.
Regulations changed back in 2015. That’s when the government passed laws about surrogacy tourism in India. However, Indian couples who have been married for at least five years were still allowed to hire a commercial surrogate until 2018. In December 2018, new laws were passed that made all commercial surrogacy illegal to protect poor women from being exploited.
The only surrogacy allowed today is surrogacy for infertile heterosexual couples who have been married for five years. They must have a doctor’s certificate to prove that they are infertile and medically require this assistance. ‘Altruistic’ means that they must be unpaid, though they can be compensated for certain expenses.
Single people, homosexual couples, and non-married couples are now forbidden from using a surrogate in India. The surrogates themselves must only do this service once, and they must be a close relative to the couple. They must be married themselves and have at least one living biological child. They cannot use their own eggs for the procedure – they cannot be the genetic mother.
Indian birth certificates list the intended parents as the baby’s parents – not the surrogate. However, before the baby is six months old, you must obtain a Parental Order (though many people do this during the pregnancy). This will legally transfer the parental rights to you and remove any and all doubt about the child’s legal parents.
Having robust contracts in place is a must. They help ensure everyone is on the same page. That’s why you need to seek legal counsel throughout this process, even if you love and trust the surrogate.
This is a common fear for people using a surrogate to have a baby. After all, even with gestational surrogacy, a strong bond is formed between the surrogate and the baby.
Well, remember that since 2018, all Indian surrogates must be closely related to the intended parents. This means that you will love and trust them, and it is highly unlikely they will try to ‘trick’ you out of your baby. Any woman willing to be a surrogate is filled with compassion and love, and she will want to see you united with your little one.
Almost all women will happily give up the baby to its intended parents, but there is always a chance that she will change her mind. So, what happens then?
Thankfully, this has not happened in India – there are no documented cases. Even if there were, however, the court would side with the intended parents. After all, the surrogate mother is not the child’s biological mother, and all of the contracts in place clearly define the agreement.
Again, that’s why it is so important to work with a lawyer and have every party sign a contract.
It is absolutely natural to feel doubt and fear when it comes to surrogacy. This is a big decision, and it’s not the ‘normal’ way to go about becoming mum and dad! It’s always normal to feel nervous about the unknown, and you’re entrusting another person with the most important job on earth.
Make sure you speak to a professional counsellor about your emotions and keep the communication open with your partner and the surrogate.
Some nosy friends and neighbours will always have something to say about your personal business – that’s a fact. Sadly, those people tend to be extra judgemental about fertility and surrogacy.
However, this could soon change. Infertility affects up to 1 in 7 couples in India, and more and more people are seeking alternative ways to have a family. Many celebs use surrogates to have their babies, including Shah Rukh, Priyanka and Nick, and Shilpa. Even the single men are choosing this route to fatherhood! Tusshar Kapoor and Karan Johar went for this option. Tushar’s sister Ekta was so impressed with his journey that she chose surrogacy herself! (Sadly, single parents are no longer allowed to legally use surrogates in India, though they can travel to other countries).
If you are going to go for a surrogate, you can point to these celebrities when your friends or family ask questions. Most people will be happy for you and will wish you well on your journey.
Commercial surrogacy is illegal in India. Before 2015, commercial surrogacy was common, but the women were often paid just a fraction of the fees, with the agencies keeping most of the money. To prevent this exploitation, this practice is now illegal.
However, you must pay for all of your surrogate’s expenses, which can include vitamins, a special diet, doctor’s appointments, time off work, and maternity clothing. You should also hire a lawyer to create legal documents and ensure that everyone is represented.
In India, paid surrogacy is now illegal, and it comes with harsh penalties. The surrogate must be doing this monumental task out of kindness and compassion, not for monetary gain. You can compensate them for their expenses, such as prenatal vitamins, doctor’s appointments, and time they may have to take off work.